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AGO 1956 No. 250 - April 20, 1956
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Don Eastvold | 1953-1956 | Attorney General of Washington

EMINENT DOMAIN ‑- CONSTITUTIONAL LAW ‑- IMMEDIATE POSSESSION BY STATE 

1. House Joint Resolution No. 22 if ratified by the voters in November will permit the State to take immediate possession of property involved in a condemnation action for purposes other than highway right of way.

2. The term "state" as used in House Joint Resolution No. 22 does not include counties, cities, towns and other municipal corporations.

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                                                                   April 20, 1956

Honorable Dale McMullen
State Senator, 17th District
Central Building
Vancouver, Washington                                                                                                              Cite as:  AGO 55-57 No. 250

 Dear Sir:

             In your letter of March 21, 1956, you asked two questions relating to the interpretation of House Joint Resolution No. 22 adopted by the 1955 session of the legislature which may be paraphrased as follows:

             1.         Is the wording of House Joint Resolution No. 22 sufficiently broad to permit the state to take immediate possession of property involved in condemnation action for purposes other than highway right of way?

             2.         Does the term "state" as used in House Joint Resolution No. 22 include counties, cities, towns and other municipal corporations?

              [[Orig. Op. Page 2]]

            We answer your first question in the affirmative and your second question in the negative.

                                                                     ANALYSIS

             (1) House Joint Resolution No. 22 changes Amendment 9, Article I, § 16, Washington Constitution, by the addition of the following:

             "* * * except that after the filing of an action in eminent domain the state shall be entitled to immediate possession of property upon payment into court, before trial, of such amount as shall be provided by law.  * * *"

             The answer to both your questions turns on the meaning to be given the word "state" as it appears in the resolution.

             It is a cardinal rule of construction that the language of a constitution is to be taken in its general and ordinary sense; and when words are used which have both a restrictive and a general meaning, the general must prevail over the restrictive unless the nature of the subject matter and the context indicate that a limited sense was intended.  Bronson v. Syverson, 88 Wash. 264; State ex rel. Mason County Logging Company v. Wiley, 177 Wash. 65; State ex rel. Linn v. Superior Court, 20 Wn. (2d) 138.  With reference to your first question, the word "state" in its general and ordinary sense certainly comprehends all functions of state government, not merely highway purposes.  There is no restrictive language indicating that the word "state" should be given a limited interpretation.  In the absence of such restrictive language, it appears reasonable to assume that the framers of the resolution intended, and that the people who may ultimately adopt it will intend, that the amendment should apply to all the usual and ordinary purposes for which the state would acquire property by exercise of the power of eminent domain.

             Although a legislative pronouncement may not be determinative of the meaning of the constitution, we feel that our opinion as to the meaning to be given to the word "state" is supported by the fact that RCW 8.04.010, which establishes the procedure for eminent domain by the state, extends its provisions to "any officer, board, commission or other body representing the state * * * authorized by the legislature to acquire any land * * * or any department or institution thereof * * *."

              [[Orig. Op. Page 3]]

            (2) We do not feel that the word "state" in its ordinary and usual sense, nor in its context within the Washington constitution, includes counties, cities, towns or other municipal corporations.

             The above conclusion is borne out by other provisions of the Washington constitution.  Separate sections are provided for limitation of the state debt (Article VIII, § 1) and limitation upon the indebtedness of a county, city, town, school district or other municipal corporation (Article VIII, § 6).  Separate sections provide that the credit of the state (Article VIII, § 5) and of any county, city, town or other municipal corporation (Article VIII, § 7) shall not be loaned.  The title of Article VIII, "State, County and Municipal Indebtedness", further indicates that the framers and adopters of the constitution recognized a distinction between the state and the municipal corporations created by it.

             Municipal corporations have been distinguished from the state in the application of Article II, § 26, Washington Constitution, "Suits Against the State."  Riddoch v. State, 68 Wash. 329.  The sovereign character of the state and the subordinate character of the municipal corporation has been recognized by our state supreme court in other situations as well.  Jones v. Reed, 3 Wash. 57; State v. Aberdeen, 34 Wash. 61; State ex. rel. Eastvold v. Superior Court, 44 Wn. (2d) 607.  See 1 McQuillin, Municipal Corporations (3rd Ed.), § 2.12.

             It is worthy of note that our legislature has separate statutes establishing the procedure for the exercise of eminent domain by the state (RCW 8.04.010 et. seq.), counties (RCW 8.08.010 et seq.), cities and towns (RCW 8.12.010 et. seq.), school districts (RCW 8.16.010 et seq.), flood control districts (RCW 86.08.320), hospital districts (RCW 70.44.060), public utility districts (RCW 54.16.020), and port districts (RCW 53.08.010).

             Of assistance in determining the meaning to be given the word "state" are the changes made in Article I, § 14, California constitution to permit the taking of immediate possession.  The first portion of this article originally was almost exactly identical with that of Amendment 9, Article I, § 16, of the Washington constitution and was construed to deny the right of immediate possession in the same manner as was done inState ex rel. Eastvold v. Yelle, 46 Wn. (2d) 166; andSteinhart v. Superior Court, 70 Pac. 629.  By the amendments in 1918, 1928  [[Orig. Op. Page 4]] and 1934, the exception relating to taking of possession was in steps extended to counties, to the state, and finally to metropolitan water districts, municipal utility districts, drainage, irrigation, levee, reclamation or water conservation districts, and similar public corporations.

             Article 1, § 18 of the Oregon constitution contains an express exception in behalf of the state, and in this respect is similar to House Joint Resolution No. 22.  InState ex rel. Kendall v. Mohler, 237 Pac. 690, the Oregon court stated at page 694:

             "It will be observed from the above constitutional provision that private property may be taken for public use by the state without first assessing and tendering compensation.  Cases cited where private property is appropriated by others than the state are not in point."

             We therefore conclude that the word "state" as used in House Joint Resolution No. 22 does not include counties, cities, towns or other municipal corporations.

             We trust the foregoing analysis will be of assistance to you.

 Very truly yours,
DON EASTVOLD
Attorney General 

EDWARD E. LEVEL
Assistant Attorney General

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